On Friday November 2, 2012 the Supreme Court released two decisions which had been long awaited: R v St-Onge Lamoureux, 2012 SCC 57; R v Dineley, 2012 SCC 58. While the decisions deal with different issues (constitutionality of 258(1)(c), (d), (d.01) and (d.1) in the case of the former and the retrospectivity of those provisions in the case of the latter) they are linked and both have a notable impact on “over 80” prosecutions.

In St-Onge Lamoureux the majority, authored by Deschamps J, struck out the second and third prong of the 258(1)(c) presumption as set out in Bill C-2 passed in July 2008. In Dineley – which will be the subject of a later post – the majority, also authored by Deschamps J, held that those same amendments – as they stood after St-Onge Lamoureux – did not apply retrospectively.

With respect to St-Onge Lamoureux, Deschamps J began by explaining the scheme of section 258:

Before 2008, it was settled law that s. 258 Cr. C. established two presumptions of identity and one presumption of accuracy. The amendments have not changed the nature of these presumptions. Section 258(1)(c) Cr. C. establishes a presumption of accuracy of the results of the analyses, and a presumption of identity according to which the results are presumed to correspond to the blood alcohol level of the accused at the time of the alleged offence…Section 258(1)(d.1) Cr. C. establishes a second presumption of identity according to which a blood alcohol level over .08 at the time of the analysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence [para 15].

Deschamps J further explained that the “standard of proof that must be met to rebut the presumptions” has not changed, despite the use of the word “conclusive” [para 16]. Notable, in dissent, Cromwell J similarly noted this standard. However, in doing so, Cromwell J – more accurately – points out that the evidence pointed to by the defence must raise a reasonable doubt not only about the general accuracy/reliability of the results but must raise a reasonable doubt that the BAC was actually over 80. He explained it as follows:

Since at least the time of this Court’s decision in R. v. Crosthwait, 1980 CanLII 182 (SCC), [1980] 1 S.C.R. 1089, it has been clear that an accused wishing to rebut a presumption that the analysis was accurate when taken had to be able to point to evidence capable of raising a doubt that his or her blood alcohol content was below the legal limit at the time of testing. Pigeon J. for the Court noted that “[w]hat is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation ... of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum”: p. 1101 (emphasis added). This interpretation of what is required to rebut a presumption that the readings were accurate has never been questioned by this Court: see, e.g. R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791, at paras. 34-42; R. v. Boucher, 2005 SCC 72 (CanLII), 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 16. This principle applies in my view to the presumption of accuracy now found in s. 258(1)(c). To the extent that the challenged provisions require some evidence that an accurate breathalyzer reading would have been below .08, the provisions simply reflect what is required to constitute logically probative “evidence to the contrary” in this setting [emphasis in original]; [para 139].

The amendments in 258(1)(c) and (d.01) were designed to preclude the Carter defence in its previous form. The amendments in 258(d.1) required the accused to show that not only was his consumption consistent with both a BAC not exceeding .08 but also one that is consistent with the test results.

Turning to test the constitutional validity of these provisions, Deschamps J began with section sections 258(1)(c) and (d.01) and exposed them to the scrutiny of section 11(d). In doing so, Deschamps J considered “presumptions” that had been set out by Parliament in the past and then turned to the presumptions at issue:

It is therefore necessary to inquire into the effect of the presumptions of accuracy and identity provided for in s. 258(1)(c) Cr. C. The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real [para 25].

Deschamps J then reviewed the recommendations of the ATC and CSFS and noted that they were not adopted by Parliament. The impact of this was explained as follows:

However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant. The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial. But a judge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1)(c). In view of the mechanism for applying the statutory presumptions established in s. 258(1)(c), I find that s. 258(1)(c) and s. 258(1)(d.01) infringe s. 11(d) of the Charter [para 27].

Having found a violation of section 11(d) of the Charter Deschamps J turned to consider section 1.

Deschamps J began with the first prong – proving that the instrument was functioning or operated improperly.

The objective of that prong was to give the reliability of the test results a weight consistent with their scientific value [para 33]. This was accepted as a pressing and substantial objective.

Turning to rational connection, Deschamps J held that the first prong of the three prong test set out in 258(1)(c) was appropriate:

In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of the instrument is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. It is therefore logical to provide that the results can be challenged only by raising problems that can be objectively identified and that relate to possible deficiencies in the instrument itself or in the procedure followed in operating it [para 38].

Similarly, Deschamps J held that the provision was minimally impairing.

Ultimately – after considering the second and third prong – Deschamps J held that this first prong was also proportionate and therefore justified under section 1 [paras 64-67].

With respect to the second prong, Deschamps held that it was not saved by section 1 concluding, in part, as follows:

In these circumstances, having regard to Parliament’s objective of giving priority to the reliability of the test results, I conclude that requiring an accused to prove not only a malfunction or improper operation of the instrument that is serious enough to raise a reasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that the blood alcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent. This infringement cannot be justified in a democratic society [para 59].

With respect to the third prong, Deschamps held that it was not saved by section 1 concluding, in part, as follows:

If the accused has already identified a defect that could cast doubt on the reliability of the results, it is difficult to justify requiring the court to nevertheless accept that the results have probative value if the accused has produced no evidence regarding his or her blood alcohol level. This amounts to saying that, where a court has a doubt about an essential element of the offence, it must nevertheless convict unless the accused can present evidence tending to show that he or she is innocent. I accordingly find that the third requirement of s. 258(1)(c) cannot be justified under s. 1 of the Charter [para 63].

Deschamps J then turned to consider the impact of section 7 on this first prong; in doing so it was held that the first prong did not violate section 7 – the following excerpt is instructive:

It should be noted that the defence created by Parliament is not illusory simply because accused persons will rarely succeed in raising a reasonable doubt that the instrument was functioning or was operated properly. The existence of a defence must not be confused with how often those presenting it are successful…

Finally, it should be mentioned that the conclusion that the first requirement of s. 258(1)(c) does not violate s. 7 is in no way incompatible with a finding that it constitutes a justifiable infringement of the right to be presumed innocent. In light of the scientific evidence in the record, as we have seen, Parliament was justified in requiring evidence directly related to the operation or functioning of breathalyzers. It was therefore open to Parliament, without violating s. 7 or s. 11(d) of the Charter, to exclude the possibility that a Carter defence would suffice on its own to cast doubt on the test results [paras 79-80].

Deschamps J, therefore, concluded that the first prong of section 258(1)(c) and section 258(1)(d.01) were constitutional.

Turning to section 258(d.1) Deschamps J held that while that section violated section 11(d) it was properly saved under section 1 [paras 82-96].

While there are many things that are noteworthy about the ruling, two points seem worthy of immediate comment.

First, Deschamps J’s comments about how an accused might seek to raise a reasonable doubt. Deschamps J made reference to disclosure issues in the context of how an accused might challenge the functioning or operation of the instrument. What is troubling, however, is that while it was conceded that the “nature and scope of the evidence that might be considered relevant” to raise a doubt was not “argued on this appeal” – and therefore “it would not be appropriate to rule on the specific limits of that evidence” – Deschamps J appears to have nonetheless offered obiter comments in that regard [paras 42, 48 and 78].

Initially, Deschamps J noted that evidence such as the readings, the certificate and the certificate concerning the alcohol standard might be relevant. This is understandable and there would be little argument about this [para 42].

However, Deschamps J later commented that the “prosecution must ofcourse disclose certain information concerning the maintenance and operation of the instrument…” [para 48]; [emphasis added]. “Of course” the prosecution must disclose this information? This comment is as curious as it is troubling. Without an evidentiary record or specific argument about this point Deschamps J appears to be considering an issue which is very specific and driven by expert evidence. Moreover, this is a point which, since the 2008 amendments, has been the subject of litigation in the courts. This comment appears to disregard that litigation and the evidence that has been tendered by the Crown that suggest such evidence is not relevant and will not be disclosed short of a court order. For example, the Intoxilyzer 8000C does internal checks and produces the records of those tests along with the breath readings. It is difficult to understand how past maintenance issues could be relevant if, at the time of the test, the instrument was working properly and that proper operation is ascertainable based on the record produced and disclosed to defence.

Fortunately, Deschamps J appears to reveal the obiter and inconclusive nature of this comment when she noted that if the prosecution denies “such a request” the accused can invoke the rules on non-disclosure” [para 78]. Hopefully this is a signal that the issue will be resolved another day.

Second, Deschamps J’s comments – or lack thereof – about what it means to raise a reasonable doubt. Deschamps J makes passing reference to the standard and what it means to raise a reasonable doubt – and noted that it has not changed [para 16]. Cromwell J, in dissent, reviewed that same point. His review, however, was more comprehensive and recognized what “reasonable doubt” specifically means in this context [para 139].

The standard to raise a reasonable doubt is more than just pointing to evidence that demonstrates the readings are inaccurate; the evidence must demonstrate that the readings were inaccurately over 80 – put another way, it must “leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum”: St Pierre; Boucher; St-Onge Lamoureux per Cromwell J. It is clear that both Deschamps and Cromwell JJ agree on this point. However, Deschamps J’s cursory review of that in light of striking down the second prong is curious.

With respect, it seems that the second prong was intended to ensure this very thing. The second prong was intended to require that raising a reasonable doubt about the functioning or operation alone was not sufficient. The doubt about the functioning or operation had to also demonstrate that it resulted in improper readings over 80. This is not shocking – nor does it seem unconstitutional – as that is, after all, what is required to raise a reasonable doubt [para 16 per Deschamps J and para 139 per Cromwell J].

Deschamps J’s conclusion, therefore, that the second prong is unconstitutional is somewhat curious and appears somewhat inconsistent with the acceptance of what it means to raise a reasonable doubt. This is illustrated in the following passage:

In these circumstances, having regard to Parliament’s objective of giving priority to the reliability of the test results, I conclude that requiring an accused to prove not only a malfunction or improper operation of the instrument that is serious enough to raise a reasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that the blood alcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent. This infringement cannot be justified in a democratic society [para 59]; [emphasis added].

In fairness, perhaps requiring a “causal connection” between the malfunction or improper operation is going to far, but, it seems that in fact that is what would be required. Not any malfunction or improper operation can or should suffice in raising a reasonable doubt. The malfunction or improper operation must be shown to have produced not only inaccurate results, but also ones that are inaccurately over 80. It is difficult to imagine how that would happen without linking it back to the malfunction or improper operation.

Perhaps, in fact, the second prong was simply duplicitous. It is in fact captured by the definition of what “reasonable doubt” in fact means in this context.